مسئولیت پرداخت دیه در جنایات کمتر از نفس در فرض عدم دسترسی به جانی؛ اعتبارسنجی ضمان ترتیبی جانی، عاقله و بیت‌المال

‌ ∴ Introduction ∴ ‌
The doctrine of liability for blood money [Diyya] in Islamic law has traditionally been centered around the concepts of intentional, quasi-intentional, and unintentional offenses, with well-established jurisprudential rules concerning cases of murder. However, the matter becomes more legally and ethically complex in cases of offenses less than murder—such as physical injuries or amputations—especially when the perpetrator becomes unavailable. In such cases, where the execution of Qiṣāṣ (retributive punishment) is practically impossible, the question of who bears the financial responsibility for Diyya becomes of paramount importance.
     While juristic consensus among Shia scholars provides a tiered order of liability—starting with the perpetrator, followed by the ʿĀqilah (the paternal and maternal relatives of the perpetrator, or only paternal relatives, according to Islamic inheritance law, specifically those who can inherit at the time of death), and ultimately the Bait al-Māl (public treasury)—the application of this model to offenses less than murder has not been consistently addressed in legal codification. Notably, the Islamic Penal Code of the Islamic Republic of Iran (1991) recognized this classical order in cases of murder but remained silent in cases of lesser offenses. By contrast, the 2013 Penal Code omitted the ʿĀqilah from the chain of responsibility altogether, assigning liability first to the perpetrator and then, if necessary, to the public treasury.
     This paper seeks to address the significant legal and jurisprudential gap in the treatment of non-homicidal offenses when the perpetrator is unavailable. "Unavailability" herein refers to a broad set of circumstances in which the perpetrator, though identified, is inaccessible—due to death, flight, captivity, or geographical isolation—thus necessitating an alternative mechanism for the delivery of justice to the victim.

‌ ∴ Research Question ∴ ‌
The central research question guiding this study is:
     To what extent should the classical Islamic jurisprudential framework of financial liability—comprising the perpetrator, ʿĀqilah, and Bait al-Māl—be applied to offenses less than murder in cases where the perpetrator is unavailable, and how consistent is the current legislative approach of the Iranian Islamic Penal Code with this framework?
     This question further expands into sub-inquiries, such as:
     What is the evidentiary basis in Islamic sources (particularly Hadith) for assigning financial responsibility in non-homicidal offenses?
     Why did the Iranian legislature omit the ʿĀqilah in the 2013 Penal Code despite its inclusion in classical jurisprudence and the 1991 Code for homicide cases?
     What legal or policy rationales underlie the shift in legislative approach, and do they align with juristic doctrine?

‌ ∴ Research Hypothesis ∴ ‌
The Islamic Penal Code of Iran, particularly in its 2013 iteration, does not fully align with the established Shia juristic consensus on the matter of Diyya responsibility in cases of non-homicidal offenses involving an unavailable perpetrator. Specifically, the exclusion of the ʿĀqilah represents a divergence from the traditional three-tiered framework of liability that includes the perpetrator, ʿĀqilah, and the public treasury.

‌ ∴ Methodology & Framework, if Applicable ∴ ‌
This study employs a qualitative, doctrinal methodology rooted in traditional Islamic legal reasoning (Ijtihād-based). Primary sources include classical Fiqh literature, Qur’anic exegesis, and relevant Hadith compilations, with a particular emphasis on the opinions of prominent Shia jurists across various centuries. Secondary sources include academic commentaries, comparative analyses of different versions of the Islamic Penal Code, and legal interpretations issued by recognized juristic bodies.
     The analytical framework is structured around the evaluation of legal responsibility through the tripartite lens of:
     Perpetrator liability – based on ownership of property and moral culpability;
     ʿĀqilah liability – derived from tribal and familial obligations in classical Islamic society;
     Bait al-Māl liability – reflecting the state's residual responsibility for delivering justice when other sources are unavailable.

‌ ∴ Results & Discussion ∴ ‌
The study’s analysis reveals that the traditional hierarchical model of responsibility—beginning with the perpetrator, followed by the ʿĀqilah, and ultimately the Bait al-Māl—is not substantiated in the case of offenses less than murder when the perpetrator is unavailable. A close examination of the jurisprudential sources and Hadith evidences demonstrates that the term "al-Damm" (blood), often cited in support of this order, refers specifically and definitively to cases of murder. Its extension to non-homicidal offenses such as bodily injury or amputation lacks sufficient textual and contextual support. The research finds that applying the same evidentiary base used for murder to non-murder cases introduces significant jurisprudential ambiguity.
     Furthermore, the legislative shift in the Islamic Penal Code of 2013—removing the ʿĀqilah from the chain of responsibility and retaining only the perpetrator and the public treasury—was critically assessed. The study concludes that while the 2013 Code attempts to provide legal clarity, its foundation remains unsubstantiated in Islamic jurisprudence. Even the inclusion of the public treasury as a secondary liable party lacks a firm juristic basis in the context of non-murderous crimes.
     Hence, the proper legal conclusion in both jurisprudential and statutory contexts is that the responsibility for paying Diyya in such cases should rest solely with the perpetrator, regardless of his availability, with no obligation extended to either the ʿĀqilah or the Bait al-Māl.

‌ ∴ Conclusion ∴ ‌
This research concludes that the traditional model of sequential liability—perpetrator, ʿĀqilah, and Bait al-Māl—cannot be justifiably applied to offenses less than murder in cases where the perpetrator is unavailable. The Hadiths cited by jurists are either ambiguous or explicitly limited to cases of murder, and their application to non-homicidal offenses lacks jurisprudential integrity. Consequently, the Iranian legislature’s adaptation of this hierarchical responsibility model, both in its earlier recognition (1991) and later modification (2013), fails to align with sound Islamic legal reasoning.
     The findings affirm that neither the ʿĀqilah nor the public treasury should bear any responsibility in such cases. Rather, the perpetrator alone must be held accountable for the payment of Diyya, reinforcing the individual’s direct liability for harm caused, even in his absence.